Dept. of IF&W and MSEA, No. 83-UC-43 and 91-UC-11 Interim Order dated 
April 9, 1991. Unit Clarification Report dated May 4, 1993. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 83-UC-[43] & 91-UC-11 Issued: April 9, 1991 _____________________________________ ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Petitioner, ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Respondent, ) ) AND ) INTERIM ORDER ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Petitioner, ) ) and ) ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Respondent. ) _____________________________________) On November 26, 1990, the State of Maine filed its response to the petition in Case No. 91-UC-11. Paragraph 5 of the response urged, as grounds for dismissal of the MSEA's petition, that: The State further asserts that MSEA knew or should have known that the position of Chief Accountant in the Department of Inland Fisheries and Wildlife was excluded from bargaining prior to the signing of the 1989-92 collective bargaining agreement and failed to raise that issue at bargaining which resulted in an agreement containing a bargaining unit description. [footnote omitted]. On November 27, 1990, the MSEA filed a motion, pur- suant to 26 M.R.S.A. 979-E(3) and Board Rule 1.16(A), seeking dismissal of the State's petition for unit clarification in Case No. 83-UC-43. The MSEA's motion states that if, as alleged by the State's response in Case No. 91-UC-11, the parties' 1989-92 agreement contains a bargaining unit [-1-] ______________________________________________________________________________ description within the meaning of Board Rule 1.16(A), that unit description "resolves all issues raised in [the State's] petition." The MSEA's motion concluded that "[s]ince the parties have been 'able to agree on appropriate modifications' to the unit, there is no longer any legal basis, under 26 M.R.S.A. 979-F(3)(sic), for this Petition for Unit Clarification." The question of whether the parties' 1989-92 collective bargaining agreement contains a bargaining unit description, within the meaning of Board Rule 1.16(A)(2), is a preliminary issue that has to be decided prior to ruling on the State's paragraph five defense and on the MSEA's motion to dismiss. At the evidentiary hearing on the merits in Case No. 91-UC-11, held on February 26, 1991, the hearing examiner announced that judgment on the latter two questions would be reserved until the issuance of the deci- sion on all of the pending issues relating to the Department of Inland Fisheries and Wildlife. That remains the case; however, in State of Maine and Maine State Employees Association, Case No. 91-UC-04, the same parties anticipated that the undersigned hearing examiner would decide the prelimi- nary issue concerning the parties' bargaining agreement, on the basis of the record in the instant case. Since Case No. 91-UC-04 is now ripe for decision, but for resolution of the preliminary issue, said question will be decided in this interim order. JURISDICTION The jurisdiction of the hearing examiner to hear these matters and to make unit clarification decisions herein lies in 26 M.R.S.A. 979-E(3) (1988). FINDINGS OF FACT On the basis of the relevant portion of the record which consists of the parties' stipulations of fact, accompanying exhibits, and the testimony of Steven J. Butterfield, the hearing examiner finds: 1. The Maine State Employees Association ("MSEA") is the certified bargaining agent, within the meaning of 26 M.R.S.A. 979-A(1) (1988), for the State employee Administrative Services; Operations, Maintenance and Support Services; Law Enforcement Services; Professional and Technical Services; and Supervisory Services bargaining units. -2- ______________________________________________________________________________ 2. The State of Maine ("State") is the public employer, within the meaning of 26 M.R.S.A. 979-A(5) (1988), of the employees whose classifi- cations are included in the bargaining units mentioned in the preceding paragraph. 3. Starting with the initial 1978-80 agreements, each collective bargaining agreement for each bargaining unit represented by MSEA has been printed in a separate bound booklet. 4. Prior to the parties' 1986-87 collective bargaining agreements, the list of employee classifications constituting the unit covered by each bargaining agreement did not appear in the printed booklet containing said agreement. 5. During the negotiations that culminated in the 1986-87 agreements, MSEA proposed that the list of employee classifications that constitute each bargaining unit represented by MSEA be included in the printed booklet containing the collective bargaining agreement for that unit. 6. The MSEA's proposal mentioned in the preceding paragraph was agreed to by the State and the list of classifications has appeared in the booklets containing the parties' 1986-87 collective bargaining agreements and all successor agreements. 7. During the negotiations that culminated in the parties' 1987-89 collective bargaining agreements, there was discussion at the bargaining table that the list of unit classifications would appear in the back of the contract for "convenience and informational purposes only." 8. After the parties had completed negotiations over their 1989-92 collective bargaining agreements and said agreements had been signed, Steven J. Butterfield, on behalf of MSEA, and Alicia Kellogg Hanson, on behalf of the State, met to discuss the lists of unit classifications that would be included with the 1989-92 agreements. 9. During the discussions between Mr. Butterfield and Ms. Hanson, the State provided the MSEA with a computer printout of all of the classifica- tions in each unit represented by MSEA as well as all other classifications in State service. The list provided by the State included class titles, unit assignment or exclusion, salary range, job class code, exam status, and equal employment opportunity code for all positions in the State per- sonnel system. 10. Mr. Butterfield and Ms. Hanson were each authorized by their respective principal party to resolve any discrepancies between the master classification list supplied by the State and that maintained by MSEA. 11. Mr. Butterfield and Ms. Hanson discovered and resolved discrepan- cies between the two lists mentioned in the preceding paragraph and, in effect, reached agreement on a list of constituent classifications for each of the bargaining units represented by MSEA. -3- ______________________________________________________________________________ 12. At the time that they reached agreement on the lists of constituent unit classifications noted in the preceding paragraph, the parties believed such lists to be as accurate as possible. 13. The final unit classification lists noted in paragraph 11 hereof were neither signed nor initialled by the parties' chief negotiators; nevertheless, each list was included in the printed booklet containing the collective bargaining agreement for the unit whose constituent classifica- tions make up such list. 14. Pages i-iv of the parties' 1989-92 Supervisory Services unit collective bargaining agreement booklet contains a Table of Contents that lists the following: Preamble . . . . . . . . . . . . . . . . . . page 1 Articles 1-73 . . . . . . . . . . . . . . . pages 2-85 Memorandum of Agreement Transportation Investigator Supervisors . . . . . . . . . page 85 List of Supervisory Services Bargaining Unit Classifications . . . . . . . . . . . page 89 15. Immediately following the list of unit classifications, in the parties' 1989-92 Supervisory Services unit collective bargaining agreement booklet, is a page containing the names of the persons who signed the agreement on behalf of their respective parties. 16. The first two paragraphs of the Recognition article, Article 1, of the parties' 1989-92 Supervisory Services unit collective bargaining agreement states: Pursuant to the Maine Labor Relations Board certification dated September 7, 1977, the State recognizes the Maine State Employees Association (MSEA) as the sole and exclusive represen- tative for the purpose of representation and negotiations with respect to wages, hours of work and other conditions of employment for all employees included in the Supervisory Services Bargaining Unit. In the event of a dispute between the parties as to future inclusions or exclusions from the unit resulting from the establishment of new or changed classifications or titles, either party to this Agreement may apply to the Maine Labor Relations Board for resolution of the dispute. 17. The Conclusion of Negotiations provision, Article 13, of the par- ties' 1989-92 Supervisory Services unit collective bargaining agreement states: A. The State and MSEA agree that this Agreement is the entire Agreement, terminates all prior Agreements or understand- ings and concludes all collective negotiations during this term. Neither party will during the term of this Agreement seek to uni- -4- ______________________________________________________________________________ laterally modify its terms through legislation or other means which may be available to them. B. Each party agrees that it shall not attempt to compel negotiations during the term of this Agreement on matters that could have been raised during the negotiations that preceded this Agreement, matters that were raised during the negotiations that preceded this Agreement or matters that are specifically addressed in this Agreement. 18. The Copies of Agreement article, Article 15, of the parties' 1989-92 Supervisory Services unit collective bargaining agreement states: The parties shall jointly arrange for printing copies of this Agreement. Each party shall pay for the copies it requires for distribution. 19. The inside back cover of the parties' 1989-92 Supervisory Services unit collective bargaining agreement booklet states: "Pay scales will follow in a separate mailing." The parties' 1986-87 and 1987-89 Supervisory Services unit collective bargaining agreement booklets con- tained the Standard and Non-Standard Salary Schedules for pay ranges 1-62. DISCUSSION The question that will be addressed in this interim order is whether the parties' 1989-92 collective bargaining agreements contain "bargaining unit description(s)," within the meaning of Board Rule 1.16(A)(2). The relevant portion of the Rule provides as follows: Unit clarification petitions may be denied if (1) the question raised should properly be settled through the election process, or (2) the petition requests the clarification of unit placement questions which could have been but were not raised prior to the conclusion of negotiations which resulted in an agreement con- taining a bargaining unit description. The MSEA argues that, although the list of unit classifications for each bargaining unit is physically included in the collective bargaining agreement booklet for that unit, such agreements do not include a bargaining unit description within the meaning of Rule 1.16(A)(2). The MSEA's first argument is that the lists of unit classifications are not part of the parties' bargaining agreements because the lists were not finalized until after the parties had concluded their negotiations on the bargaining agreements and after the agreements had been reduced to -5- ______________________________________________________________________________ writing and signed. While the facts alleged by MSEA are accurate, their argument is not persuasive. The facts in the record lead the hearing exam- iner to find that, either at the time that they reached final accord on their 1989-92 collective bargaining agreements or shortly thereafter, the parties each contemplated that the unit classification list would be incor- porated into the bargaining agreement for the unit described in the list. This conclusion is based on the following considerations. First, at or about the time that the parties executed their most recent bargaining agreements, the State provided the complete list of positions in State ser- vice to MSEA. Shortly thereafter, the parties' representatives met to resolve discrepancies between the classification list maintained by MSEA and the current list being used by the State. The MSEA representative who was involved in resolving such discrepancies testified that the unit classification lists that resulted from such discussions were the most accurate "snapshots" of the classifications in each of the MSEA-represented units possible at that time. Second, Article 13(B) of the parties' 1989-92 agreements provides that, during the term of the agreements, neither party may "compel negotiations . . . on matters that could have been raised during the negotiations that preceded this Agreement . . . ." The question of bargaining unit com- position could have been raised prior to the parties' reaching agreement on their current agreements. Once they had executed such agreements, both parties must have wanted to resolve discrepancies in the employee classifi- cation list, since neither could force the other to meet to discuss such subject, in accordance with Article 13(B) of their agreements. Third, in connection with the parties' 1986-87 and 1987-89 collective bargaining agreements, the master classification list, once agreed to, was broken down into separate unit classification lists and each such list was included with the printed collective bargaining agreement for the unit described in that list. Article 15 of the parties' 1989-92 collective bargaining agreements provides that "[t]he parties shall jointly arrange for printing copies of this Agreement." Once the discrepancies between their respective master lists were resolved, the parties, pursuant to Article 15 of their agreement, must have agreed that the unit classifica- -6- ______________________________________________________________________________ tion lists would be included in the collective bargaining agreement booklets. Otherwise, the lists would not have been so included. The reference to the unit classifications list in the table of contents and the physical placement of the list prior to the list of names of the signa- tories to the agreement--both matters within the joint control of the par- ties, pursuant to Article 15--strongly suggest that the lists are part of the bargaining agreements. The MSEA's second major averment was that the unit classification lists are not part of the collective bargaining agreements because the lists were neither signed nor initialled by the parties' chief negotiators. This contention is unavailing for two reasons. First, no negotiating ground rule, requiring the chief negotiators' signatures in order for agreements to be binding, was introduced into evidence. Second, the classification lists were reconciled by a representative from each party, who were each authorized to take such action by their principal. The MSEA's third contention was that the unit classification lists are not part of the collective bargaining agreements because, during the nego- tiations that preceded the 1987-89 agreements, there was discussion at the bargaining table that the lists would be included with the bargaining agreement "for informational purposes only." This phrase has been referred to repeatedly in the MSEA's memorandum; however, its meaning is ambiguous. What is clear from the record is that the parties intended that the unit classification lists be included in the bargaining agreement booklets, and that such lists are treated in the agreements' table of contents the same way as are the agreements' preamble and the memorandum of agreement con- cerning the transportation investigator supervisors in the Supervisory Services agreement booklet. The former is part of the bargaining agreement and the latter is an agreement between the parties that was meant to supplement or supplant particular agreement provisions in regard to one unit classification. Furthermore, the parties' duly authorized represen- tatives agreed that the unit classification lists were as accurate descrip- tions of the units as was possible to achieve at the time that such lists were finalized. Whatever the meaning of the phrase "for informational purposes," it does not rebut the inference that the unit classification -7- ______________________________________________________________________________ list is included in the collective bargaining agreement booklet because it is part of the agreement. The MSEA's final argument is that the unit classification lists are not "integrated" into the collective bargaining agreements because such lists were not finalized until after the agreements had been executed. The legal concept of whether a contract is "integrated" is an issue that is relevant when considering whether the "parol evidence rule" applies to exclude extrinsic evidence offered to alter or vary unambiguous contract language. Astor v. Boulos Co., Inc., 451 A.2d 903, 905 (Me. 1982). The parol evidence rule does not apply to transactions that occurred subsequent to the execution of the allegedly integrated agreement. J. CALAMARI & J. PERILLO, THE LAW OF CONTRACTS 86-87 (1970). Since the parol evidence rule did not apply, such evidence was considered in reaching this interim order. INTERIM ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the provisions of 26 M.R.S.A. 979-E(3), the hearing examiner concludes that the 1989-92 collective bargaining agreements between MSEA and the State of Maine each contain a bargaining unit description, within the meaning of Board Rule 1.16(A)(2). Dated at Augusta, Maine, this 9th day of April, 1991. MAINE LABOR RELATIONS BOARD /s/_______________________________________ Marc P. Ayotte Executive Director -8- ______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 83-UC-43 and 91-UC-11 Issued: May 4, 1993 ____________________________________ ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Public Employer and Petitioner, ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Bargaining Agent, ) ) and ) UNIT CLARIFICATION REPORT ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Bargaining Agent and Petitioner, ) ) and ) ) STATE OF MAINE, DEPARTMENT OF ) INLAND FISHERIES AND WILDLIFE, ) ) Public Employer. ) ____________________________________) This unit clarification proceeding was initiated on December 3, 1982, when the Governor's Office of Employee Relations, on behalf of the State of Maine Department of Inland Fisheries and Wildlife (hereinafter referred to as "State") filed a petition for unit clarification pursuant to Section 979-E(3) of the State Employees Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-B. The State's petition sought to exclude eight classifi- cations from the coverage of the Act on the basis that they fell within one or more of the exclusions contained in 26 M.R.S.A. 979-A(6)(C) and (J). On June 21, 1989, the Maine State Employees Association ("MSEA") filed motions to dismiss the State's petition in this matter and 32 other pending petitions, on the grounds that the State had failed to prosecute said [-1-] _____________________________________________________________________ petitions for over two years, in contravention of Board Rule 6.05 in effect at that time. The MSEA's motions were denied in The State of Maine and Maine State Employees Association, Nos. 83-UC-15 - 83-UC-35 and 83-UC-37 - 83-UC-48, Interim Order (Me.L.R.B. May 16, 1990), the contents of which are incorporated herein by reference. On May 17, 1990, the State filed a motion, requesting that hearings be scheduled on the merits of its pending petition and, since the parties had previously been concentrating their discussions on three departments--Public Safety, Conservation, and Inland Fisheries and Wildlife--requesting that one of those cases be heard first. After discussions with the parties, it was decided to proceed with the Department of Inland Fisheries and Wildlife. The hearing officer entertained suggestions from the parties on how to process the cases and written argument was presented. The hearing examiner issued an Interim Order on June 12, 1990, setting out a case handling procedure for the Inland Fisheries and Wildlife case which, if successful, would be utilized on all pending cases. MSEA appealed the Interim Order to the Board and both parties argued that the Interim Order should be vacated. The Board vacated the Interim Order in its decision in State of Maine, Department of Inland Fisheries and Wildlife and Maine State Employees Association, No. 91-UCA-01 (Me.L.R.B. Sept. 13, 1990), and remanded the case to the hearing examiner. During discussions with the parties' representatives, it became apparent that changes in both the incumbents occupying the positions at issue and, in some cases, in the positions themselves, had occurred between the filing of the State's petition in 1982 and the convening of the evidentiary hearing. On October 1, 1990, the hearing examiner issued a letter outlining the positions at issue together with the alleged basis for each exclusion being sought, setting a schedule for the -2- _____________________________________________________________________ submission of prehearing memoranda of law, and scheduling the evidentiary hearing in the Inland Fisheries and Wildlife case. A portion of the October 1, 1990, letter stated: On or before October 22, 1990, the Petitioner shall amend its petition to reflect changes, if any, that occurred since the filing of the petition in the identities of the employees whose exclusion is being sought. On October 4, 1990, the State filed an amended petition for unit clarification seeking exclusion of the following classifications at the Department of Inland Fisheries and Wildlife from the coverage of the Act: Fish and Wildlife Division Director (Wildlife) (Gary Donovan) Fish and Wildlife Division Director (Fisheries) (Peter Bourke) Supervisor, Land Acquisition and Development (G. Donald Taylor) Director, Division of Licensing and Registration (Vesta Billing) Each classification is followed, in parentheses, by the name of the incumbent employee in the position. The first two exclusions being sought are based on the first clause of 26 M.R.S.A. 979- A(6)(J) ("J-1") and the latter two proposed exclusions are based on both clauses of 26 M.R.S.A. 979-A(6)(J) ("J-1 and J-2"). At the outset of the evidentiary hearing in this matter, the State withdrew the claims of J-2 exclusions for the classifications at issue and moved to dismiss the petition in connection to the additional positions that had been included in its original petition but were omitted from the amended petition. Both motions were granted. The parties filed prehearing memoranda of law on October 29, 1990. Evidentiary hearings on the merits of the petition in Case No. 83-UC-43 were held in the Labor Relations Board Conference Room, Room 714 of the State Office Building, Augusta, Maine, on November 5, 6 and 14, 1990. The State was represented by Sandra S. Carraher, Esq., and MSEA was represented by Timothy L. Belcher, Esq. The parties were afforded full opportunity to -3- ____________________________________________________________________ examine and cross-examine witnesses, to present documents and other evidence, and to present argument during the course of the hearing. On November 9, 1990, MSEA filed a petition for unit clarification, seeking inclusion of the Chief Accountant classification in the Department of Inland Fisheries and Wildlife into the State Employee Supervisory Services Bargaining Unit. The MSEA also filed a motion to consolidate its petition with that of the State in Case No. 83-UC-43 for purposes of hearing and decision. The State filed a response to the MSEA's petition on November 27, 1990, averring that the Chief Accountant is properly excluded from the coverage of the Act based on a 979-A(6)(C) and/or (J) and moving to dismiss on the basis of Board Rule 1.16(A)(2) in that "MSEA knew or should have known that the position of Chief Accountant in the Department of Inland Fisheries and Wildlife was excluded from bargaining prior to the signing of the 1989-92 collective bargaining agreement and failed to raise that issue at bargaining which resulted in an agreement containing a bargaining unit description." [Footnote omitted.] On December 7, 1990, the parties filed memoranda of law on the MSEA's motion to consolidate, which was opposed by the State. On November 27, 1990, MSEA filed a motion to dismiss the State's petition. The MSEA's motion was based on the following: (1) the State's original petition, filed on December 3, 1982, had sought unit exclusion for eight classifications, and (2) the State's amended petition, filed on October 4, 1990, sought exclusion of four positions which were listed as being in the Supervisory Services Bargaining Unit in the parties' 1989-92 collective bargaining agreement; therefore, consideration of the State's petition is precluded by the contract bar provision in Board Rule 1.16(A). The State's Memorandum in Opposition to the MSEA's motion was received on January 9, 1991. After meeting with the hearing examiner to discuss the type -4- ____________________________________________________________________ of facts that would be relevant to the State's Rule 1.16(A)(2) defense in Case No. 91-UC-11, an evidentiary hearing on said defense was held on December 19, 1990, before the undersigned with Attorneys Carraher and Belcher representing the parties. A stipulation of relevant facts concerning this issue was filed on December 27, 1990. On January 3, 1991, MSEA filed an amended unit clarification petition, seeking inclusion of the Administrative Assistant, Administrative Secretary, Chief Accountant and Game Warden Major positions in the Department of Inland Fisheries and Wildlife in the State Employee Supervisory Services Bargaining Unit. The State's answer to the amended petition, filed on January 14, 1991, alleged that the positions at issue were properly excluded from the coverage of the Act pursuant to 26 M.R.S.A. 979- A(6)(C) and/or (J) and that the petition is barred by Board Rule 1.16(A)(2). The parties each filed a memorandum of law on the State's motion to dismiss based on Rule 1.16(A)(2) on January 28, 1991. The hearing examiner issued an Interim Order in Case Nos. 83-UC-43 and 91-UC-11 on April 9, 1991, holding that the parties' 1989-92 collective bargaining agreements each contain a bargaining unit description within the meaning of Rule 1.16(A)(2). The contents of the Interim Order are incorporated herein by reference. On February 13, 1991, MSEA filed a second amended petition, again seeking inclusion of the Chief Accountant and Game Warden Major classifications in the Department of Inland Fisheries and Wildlife into the State Employee Supervisory Services Bargaining Unit. The undersigned sent a letter to the parties on February 14, 1991, which stated, in part, as follows: Since [the second amended] petition merely deletes two positions included in the Union's amended petition, filed on January 3, 1991, and since the State filed an answer to the broader petition on January 14, 1991, said answer is deemed to apply to the second amended -5- ____________________________________________________________________ petition and no further answer to said petition need be filed at this time. An evidentiary hearing on the merits of the MSEA's petition was held in the Labor Board Conference Room on February 26, 1991. The parties were again represented by Attorneys Carraher and Belcher. Prior to going on the record at the hearing, MSEA moved to amend its petition by deleting the Game Warden Major classification therefrom. The State had no objection to the motion and it was granted. The parties were afforded full opportunity to examine and cross-examine witnesses, to present documents and other evidence, and to present argument. The parties filed post-hearing main and reply briefs, the last of which was received on August 2, 1991. JURISDICTION The jurisdiction of the executive director to hear these matters and to make unit clarification decisions herein lies in 26 M.R.S.A. 979-E(3). FINDINGS OF FACT AND DISCUSSION PRELIMINARY MATTERS The petition in each of the cases was filed pursuant to 979-E(3) of the Act. That statutory provision states: Unit clarification. Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, any public employer or any recognized or certified bargaining agent may file a petition for unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. The parties have stipulated facts necessary to establish three of the four statutory prerequisites which must be met before the -6- ____________________________________________________________________ executive director may consider the merits of any proposed unit clarification. The petitioner in Case No. 83-UC-43, the State of Maine, is the public employer within the meaning of 979-A(5) of the Act of the employees in the classifications at issue therein. In the second case, the petitioner, MSEA, is the certified bargaining agent within the meaning of 979-A(1) for the State employee Supervisory Services bargaining unit--the unit to which the position in contention would be assigned, if the petition were granted. In both cases, the parties have stipulated that they have been unable to agree on the modifications being sought through the respective petitions and that there is no question concerning representation. Like the other three procedural prerequisites, the fourth-- the need for changed circumstances--"is a threshold question on which the petitioner, in a unit clarification proceeding, 'bears the burden of alleging the requisite change and, further, of establishing the occurrence of said change in the unit then at issue.'" MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09, slip op. at 7, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983), quoting from State of Maine and MSEA, No. 82-A-02, slip op. at 16, 6 NPER 20-14035 (Me.L.R.B. June 2, 1983) (Interim Order). The bargaining unit at issue in Case No. 83-UC-43 was created pursuant to the statutory unit determination procedure and was established by Council 74, AFSCME, et al. and Office of State Employee Relations, No. 75-UD-04, et al. (Me.L.R.B. Sept. 22, 1976), modified No. 77-A-02 (Me.L.R.B. Mar. 17, 1977), aff'd sub nom Maine Office of Employee Relations v. Maine Labor Relations Board, No. CV-77-135 (Me. Super. Ct., Ken. Cty., Oct. 10, 1980). The substantial change alleged in the State's petition is that the statutory exemption from the definition of "State employee" upon which the sought-after exclusionary designations are based was enacted by the Legislature subsequent to the creation of the bargaining unit involved. The statutory basis for the State's petition--the first clause of -7- ____________________________________________________________________ 979-A(6)(J)--was enacted by the Legislature as Chapter 381 of the Public Laws of 1981 and became effective on September 18, 1981. The State's petition was filed on December 3, 1982. Since the statutory basis for the exclusions in contention did not exist at the time that the unit was created, exemptions from the unit and from the coverage of the Act based thereon could not have been contemplated at that time. The executive director concludes that the enactment of the exemption upon which the State's petition is based, subsequent to the formation of the bargaining unit involved, is a sufficiently substantial change to satisfy the requirement of 979-E(3). The substantial change alleged in MSEA's petition is the "[c]reation of new position excluded unilaterally by employer." The bargaining unit involved in the petition is the same as that in Case No. 83-UC-43. The Chief Accountant classification in the Department of Inland Fisheries and Wildlife, which is the subject of Case No. 91-UC-11, was created on or about May 12, 1986, the date the position was first filled by an employee. Since the position of Chief Accountant did not exist in 1976 when the Supervisory Services bargaining unit was created, its unit status could not have been established at that time. For this reason, the creation of a new classification subsequent to formation of the bargaining unit at issue satisfies the substantial change requirement of 979-E(3), Portland Public Library Staff Assoc. and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988), and the executive director so holds herein. Each party has moved for dismissal of the other's petition based on Board Rule 1.16(A)(2). The Rule states as follows: Unit Clarification Procedures. (A) Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant -8- ____________________________________________________________________ modification in the composition of the bargaining unit the employer or the incumbent recognized or certified bargaining agent may file a petition for a unit clarification (MLRB Form 2) provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. Unit clarification petitions may be denied if (1) the question raised should properly be settled through the election process, or (2) the petition requests the clarification of unit placement questions which could have been but were not raised prior to the conclusion of negotiations which resulted in an agreement containing a bargaining unit description. Although the current language was adopted in July 1990, the concept embodied in the relevant portion of the rule mirrors a provision in the Board's 1978 and 1985 rules. The relevant portion of former Rule 1.13 stated: Unit clarification petitions may be denied if (a) the description of the job categories contained in the bargaining unit is clear and unequivocal, . . . or (c) the petition attempts to modify the composition of the bargaining unit as negotiated by the parties and the alleged changes therein have been made prior to negotiations on the collective bargaining agreement presently in force. The purposes of this rule are to reflect the statutory preference that unit placement issues be resolved by agreement of the parties and to promote a stable relationship between a public employer and its employees during the term of a collective bargaining agreement. An employee whose position is included in a bargaining unit when a collective bargaining agreement for that unit goes into effect has a reasonable expectation that her or his wages, hours, and terms and conditions of employment will be determined pursuant to said agreement during its term. From the employer's perspective, the economic effect of bargaining proposals is "costed out" during bargaining, based on the number of employees in each unit position affected by the proposal. Removing employees from a bargaining unit during the term of a collective bargaining agreement will interfere with the affected -9- ________________________________________________________________________________________________________________________________________ employees' reasonable expectations. Adding employees to the unit during the term of the agreement means that such employees receive the wages and benefits provided in the agreement and may well result in the employer's incurring personnel costs which are much higher than those it contemplated when it entered into the agreement and upon which its decision to do so was based. Mid- term changes in unit composition also have a direct impact on the employer's ability to unilaterally determine the terms and conditions of employment for the employees affected. In any event, requiring that the substantial change upon which mid-term unit composition changes are based be something that transpired since the agreement was negotiated promotes stability and predictability in the collective bargaining relationship, thus fostering improvement in the relationship between the public employer and its employees. Furthermore, the rule is consistent with the evolution of the parallel provision of the Municipal Public Employees Labor Relations Law, 26 M.R.S.A. 966(3). Town of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03, slip op. at 14-15 (Me.L.R.B. Feb. 22, 1990), and conforms with the practice of the National Labor Relations Board. See, Thomaston, supra at 13 n. 7 and cases cited therein. The first motion to dismiss based on Rule 1.16(A)(2) was filed by the State; therefore, it will be considered first. The facts pertinent to the State's motion are contained in the Stipulations of Fact filed on December 27, 1990, and in the documents referred to therein, and in the testimony of Steven J. Butterfield which is summarized in the findings of fact portion of the Interim Order of April 9, 1991. The salient relevant facts are as follows. The State maintains an alphabetical list ("Alpha list") of the over one thousand classifications in State government, including the class title, class code, EEOC code, exam status, salary grade, and unit status. This list, which is updated approximately every year, has been provided to MSEA since 1980. In March 1986, the State provided MSEA a complete set of -10- ____________________________________________________________________ job descriptions for all positions in State service and advised MSEA of the establishment of a subscription service through which the bargaining agent could keep its set of job specifications current. In May 1986, the State changed the name of the position Chief Accountant Finance and Administration to Chief Accountant. Both the original and the renamed positions were excluded from collective bargaining. The State notified MSEA of the change in November of 1986, when it provided Class Specification Update List No. 3 to the union. Prior to May of 1986, the Department of Inland Fisheries and Wildlife acquired sophisticated computer equipment and experienced a reorganization which centralized financial activities under the control of the Department's Accountant III, a classification included in the State employee Professional and Technical Services bargaining unit which is represented by MSEA. As a consequence of acquiring additional duties through the reorganization, the Accountant III position was reclassified to Chief Accountant and resulted in a pay range change, from range 21 to range 24, for the incumbent employee in the position. MSEA was not notified about the reclassification. The State never notified MSEA when positions within the Chief Accountant classification had been filled or in what departments or agencies such positions were located. MSEA represents individual employees, whose proposed reclassifications have not been approved, in a reclassification appeal process. In January 1988, MSEA and the State executed a settlement agreement in a case involving the MSEA's appeal of the State's reclassification of a Business Manager I position in the Department of Environmental Protection to Accountant III. As a result of settlement, the Business Manager I was reclassified to Chief Accountant and was excluded from collective bargaining. The Chief Accountant classification also appears in the September 1988 Alpha list, which was given to MSEA and is noted as a -11- ____________________________________________________________________ position excluded from collective bargaining therein. As part of the process that resulted in the parties' 1989-92 collective bargaining agreement, representatives of the State and MSEA met and, working from lists provided by the State that included all classifications in State service, their titles, unit inclusion or exclusion, and other information found on the Alpha list, the parties resolved discrepancies in their respective master lists of classifications, and reached agreement on the list of constituent classifications included in each bargaining unit represented by MSEA. Each list was then included in the printed collective bargaining agreement for that unit. On the basis of these and the other facts listed in the April 9, 1991, Interim Order in Case Nos. 83-UC-43 and 91-UC-11, the executive director held that the parties' 1989-92 collective bargaining agreements each contained a bargaining unit description within the meaning of Rule 1.16(A)(2). This conclusion was relied upon by the hearing examiner in the Auto Mechanic Foreman case, State of Maine and Maine State Employees Assoc., No. 91-UC-04, slip op. at 12 (Me.L.R.B. Apr. 17, 1991). The parties' 1989-92 Supervisory Services bargaining unit position list does not include the Chief Accountant classification. The parties' 1989-92 collective bargaining agreements were signed on September 5, 1989. MSEA never raised the unit status of the Chief Accountant classification during the negotiations that resulted in the 1989-92 agreements. The MSEA filed its petition in Case No. 91-UC-11 on November 9, 1990, during the term of the 1989-92 collective bargaining agreements. The State's action changing the name of the Chief Accountant Finance and Administration classification to Chief Accountant did not put MSEA on notice of the creation of a new position. Both the former and the renamed classifications were excluded from bargaining; therefore, even if the union noticed the change, it -12- ____________________________________________________________________ would not have been concerned therewith. As a result of the Department of Environmental Protection reclassification appeal settlement, MSEA learned that the Chief Accountant position was not longer limited to the Department of Finance and Administration, but, rather, that it was being used generically by the State in other executive departments. In light of having received this information, the fact that MSEA did not receive notice of the 1986 reclassification that resulted in the creation of the Chief Accountant position in the Department of Inland Fisheries and Wildlife is not dispositive herein. After the D.E.P. settlement in January 1988, MSEA could have inquired which departments had a Chief Accountant position and could have questioned the exclusion of the classification from bargaining. In the circumstances, the executive director concludes that MSEA could have raised the question of the Chief Accountant's unit status prior to executing the 1989-92 collective bargaining agreements; therefore, the petition in Case No. 91-UC-11 is barred by Board Rule 1.16(A)(2) and the State's motion to dismiss said petition is granted. The MSEA has moved that the State's petition in Case No. 83-UC-43 be dismissed pursuant to Rule 1.16(A)(2). The basis for MSEA's motion is that, by executing the 1989-92 Supervisory Services bargaining unit collective bargaining agreement, the State agreed to the bargaining unit description which is part of that agreement. Since the classifications which are the subject of the State's petition are not included in the list of Supervisory Services unit positions, "the parties have been 'able to agree on appropriate modifications' to the unit [and] there is no longer any legal basis, under 26 M.R.S.A. 979-E(3), for [the State's] Petition for Unit Clarification." MSEA's argument is unpersuasive because it ignores the realities of the situation. The State filed its petition in the instant case on December 3, 1982, well before the beginning of the negotiations -13- ____________________________________________________________________ that resulted in the parties' 1989-92 collective bargaining agreements. Filing a representation petition with the Board puts the respondent on notice of the pendency of a controversy concerning the parameters of the unit involved. Subsequent to the filing of this and the State's other unit clarification petitions, the parties litigated the Department of Transportation petition and engaged in settlement discussions concerning the instant petition, among others, until shortly before the convening of the evidentiary hearing herein. State of Maine and Maine State Employees Assoc., Nos. 83-UC-15 - 83-UC-35 and 83-UC-37 - 83-UC-48 (Me.L.R.B. May 16, 1990) (Interim Order). As indicated in the footnote from Thomaston cited above, the National Labor Relations Board will not modify bargaining units mid-term, in response to representation petitions filed outside of a contractual window period or after expiration of a collective bargaining agreement, unless the petitioner raised the change being sought during negotiations; the petitioner did not bargain away its position; and the petitioner preserved its rights by notifying the other party of its intent to pursue the issue through the board's representation procedures. In the case at bar, the State put MSEA on notice in 1983 of its intent to seek unit modifications and, since then, the parties have been actively engaged in attempting to resolve their differences through discussions away from the collective bargaining process. The State has consistently sought the exclusionary designations at issue and there is no evidence that the State ever abandoned its position in exchange for other concessions. In the circumstances, the executive director holds that the State's petition is not barred by Rule 1.16(A)(2). MSEA also moved to dismiss the State's petition on the grounds that the State amended the petition shortly before the hearing and such amendment is barred by Rule 1.16(A)(2). First, the amendment was filed in response to the hearing examiner's invitation that the State update its petition to reflect changes -14- ____________________________________________________________________ in the positions at issue that had occurred between the filing of the petition and the convening of the evidentiary hearing some seven years later. Bargaining units are not static institutions and changed circumstances during the intervening period may have had some impact on the exclusions being sought. In fact, the amended petition sought four fewer exclusionary designations than were originally at issue. Second, it is clear to the executive director that the four positions being contested through the amended petition are the same as four that were included in the original petition. The two Fish and Wildlife Division Director positions were called "Asst. Div. Dir. Fish & Wildlife" in the original petition and the Director, Division of Licensing and Registration was called "Dir., Licensing & Regis." in the original petition. In addition to referring to the same positions, the names used in the two petitions were sufficiently similar to give MSEA reasonable notice of which positions were at issue throughout the proceeding. Other than deleting four positions and identifying the current incumbent individuals in the classifications in controversy, the October 4, 1990, amended petition did not make any substantive changes to the original petition. MSEA's motion to dismiss is denied. MERITS The State's petition for unit clarification seeks exclusionary designations for four single-employee classifications in the Department of Inland Fisheries and Wildlife ("Department"). The Department is divided into four functional units: the Office of the Commissioner, the Bureau of Warden Service directed by the Game Warden Colonel, the Bureau of Resource Management, and the Bureau of Administrative Services. The Deputy Commissioner, Game Warden Colonel and Assistant to the Commissioner for Public Information are the only classifications statutorily designated as "major policy influencing positions" within the Department, 5 M.R.S.A. 942, and they are excluded from the coverage of the Act by virtue of 26 M.R.S.A. -15- ____________________________________________________________________ 979-A(6)(I). The organizational chart for the Department is as follows: Commissioner + + + + + + + + Commissioner's Office + + + + + + + + + Appointive-Grade 91 + + | + + | + + Deputy Commissioner + Regulations + Appointive-Grade 32 ------------ Regulations Officer + | + Confidential-Grade 20 + | + + ------------------------------------------------------------------------------------------------------------ + | | | + | | + Bureau of Bureau of Resource Bureau of + Planning Division Office of Public + Warden Service Management Administrative Services + Information & Education + + + + + Game Warden Colonel Director, Bureau of Director, Bureau of + Division Director, IF&W Assistant to + Appointive-Grade 30 Resource Management Administrative Services + Confidential-Grade 31 Commissioner for Public + | Confidential-Grade 31 Confidential-Grade 30 + Information + | | | + Appointive-Grade 26 + | | | + + | | | + + + + + + + + + + + + + + + + + + + + + + + + + + + + | | Division of Licensing | Game Warden Major | and Registration | Division of Realty Confidential-Grade 27 | Director, Division of | and Engineering | Licensing & Registration--| Supervisor, Land Acquisition | Supervisory-Grade 25 |----- and Development | | Supervisory-Grade 28 | | Wildlife Division | Fisheries & Hatcheries | Personnel Division Fish and Wildlife ----- Division |----- Personnel Officer Division Director Fish and Wildlife | Confidential-Grade 24 Supervisory-Grade 30 Division Director | Supervisory-Grade 30 | | Warehouse |----- Property Officer | Supervisory-Grade 16 | | Division of Accounting |----- Chief Accountant Confidential-Grade 25 The above chart illustrates that the Bureau of Resource Management and the Bureau of Administrative Services are each headed by a bureau director who is designated as "confidential"-- the State's generic term for employees excluded from the coverage of the Act for whatever reason. The genesis and rationale for such exclusions are not clear from the record; however, such designations are not at issue herein. The Bureau of Resource Management consists of two divisions, the Wildlife Division and -16- ____________________________________________________________________ Division and the Fisheries and Hatcheries Division. The Bureau of Administrative Services is comprised of several divisions, two of which are the Division of Licensing and Registration and the Division of Realty and Engineering. The directors of these four divisions are the positions at issue in this case. The State avers that the four classifications in contention are excluded from the coverage of the Act because they are excepted from the statutory definition of "State employee" and cannot, therefore, be included in any bargaining unit. 26 M.R.S.A. 979-E(1) - The merits of the State's petition will turn on a clause of subsection J of 979-A(6). The relevant statutory language is as follows: 6. State employee. "State employee" means any employee of the State of Maine performing services within the executive department except any person: J. Who substantially participates in the formulation and effectuation of policy in a department or agency . . . . The legislative history of the above clause (referred to colloquially by the parties and henceforth herein as "J-1") was reported by the hearing examiner in State of Maine and Maine State Employees Assoc., No. 83-UC-36, slip op. at 4-5 (Me.L.R.B. Apr. 11, 1986) (hereinafter referred to as "D.O.T. decision") As enacted, J-1 is much narrower in scope than the exclusion contemplated in the original bill that was introduced in the legislature and which, after being amended, became J-1. As originally proposed, individuals would have been exempted from the definition of "State employee" if they either assisted in the formulation of policy or directed the implementation of policy. As adopted, J-1 not only omits the illustrative list of the types of classifications intended to be excluded from the coverage of the Act that had been part of the original bill but also requires that one be substantially engaged in both policy formulation and implementation in order not to be a "State employee" within the -17- ____________________________________________________________________ meaning of the Act. The parties have essentially agreed that the interpretation of J-1 developed in the D.O.T. decision should be the controlling standard herein. While the D.O.T. decision may not constitute controlling precedent, the J-1 rationale applied in that case is reasonable; therefore, it will be used in deciding the merits in this case. The hearing examiner in the D.O.T. decision found New York public sector labor relations case law, concerning that jurisdiction's managerial employee exclusion, persuasive in interpreting J-1. Paraphrasing the standard outlined at page 4 of the D.O.T. decision, executive branch employees who formulate policy by selecting among options and who put policies into effect or who regularly participate in the essential process which results in policy proposals and in the decision to put such proposals into effect are exempted from the coverage of the Act by clause J-1. The policy matters relevant in this context are the development of particular objectives for a department or agency in fulfillment of its mission and selection of methods, means and extent of meeting such aims. The determination of methods of operation that are merely technical in nature does not constitute the formulation of policy within the ambit of J-1. Persons who do not participate in the decision-making process but who merely draft language for the statement of policy and those whose only role is to provide research or collect data necessary for policy development are not excluded from the coverage of the Act by J-1. D.O.T. decision, at 4. Others beyond the ambit of J-1 include persons temporarily ("even for as long as a year or more") assigned to policy analysis work, Id. at 42, or those who provide technical evaluations of complex systems to those in the decision-making process. Id. at 52-3. Except for those who occupy a position with express authority to do so, most attorneys in State service are not engaged in policy making within the meaning of J-1. Id. at 44-5. -18- ____________________________________________________________________ Director, Division of Licensing and Registration The first classification litigated by the parties is that of Director, Division of Licensing and Registration. This is a good position with which to begin our analysis on the merits because the Director's variety of duties includes some which are relevant to a J-1 exclusion and many which are not. The Division of Licensing and Registration consists of three sections--the licensing section, the registration section, and the data entry section--each of whose employees are directly supervised by a section supervisor. The Director is responsible for the overall operation of the Division and such responsibility is carried out by delegating the day-to-day operational concerns of each section to the section supervisor. The Director's position is primarily supervisory in nature with the Director spending most of her time assigning work to, and reviewing and evaluating the work of the three section supervisors. The Director also provides indirect supervision to the Division's twenty-one other employees by reviewing and approving the annual performance evaluations on each of them prepared by their section supervisor. The Director is technically responsible for preparation of the Division's biennial budget; however, the personal services portion of the budget--the portion dealing with the employees' wages and benefits--is prepared by the Department's business office. The Director does prepare the "all other" portion of the budget, which includes everything except personal services and capital expenditures for the Division, specifically including computer costs, supplies, the cost of purchasing the forms used and licenses and registrations used by the Division, and any necessary travel expenses. While involvement in the development of a department or agency's budget might well rise to the level of involvement in policy formulation, the Director's limited budgetary discretion is illustrated by her role in the FY 1990 -19- ____________________________________________________________________ deappropriation process. During the spring 1990 round of budget cuts, the specific reductions incurred by the Department were determined by the three bureau directors. The cuts experienced by the Division of Licensing and Registration and the Engineering and Realty Division were determined by the Director of the Bureau of Administrative Services. The bureau director testified that he sought little input from the division directors prior to making cuts in their budgets because the expenditures in those divisions are essentially fixed and include little discretionary spending. In sum, all of the Director's duties discussed thus far are typical of those of middle managers in State service who are included in the Supervisory Services bargaining unit and such duties do not warrant a J-1 exclusion. Providing technical information or evaluations of complex systems to those engaged in decision-making or determining the technical methods of operations of an agency were held not to constitute sufficiently substantial participation in policy formulation and implementation to warrant a J-1 exclusion in the D.O.T. decision. The Director engaged in determining the technical means of performing agency functions when she decided to solicit bids from outside vendors for production of registration stickers for recreational vehicles. Each year prior to the spring of 1990, the Division had purchased all of the recreational vehicle registration stickers that it issued from the Bureau of Motor Vehicles of the Department of State. For several years, the Division had experienced problems securing timely delivery of the registration stickers from the Bureau of Motor Vehicles and, by the end of January, 1990, the Division still had not received a sufficient quantity of 1990 boat stickers to distribute to all of its municipal and private issuing agents. All boat registrations issued in Maine go into effect on January 1 and expire on December 31 each year. Prior to ordering registration stickers for snowmobiles and all-terrain vehicles in the spring of 1990, the Director sought to avoid -20- ____________________________________________________________________ delivery problems by securing a cost estimate for production of the stickers from the Bureau of Motor Vehicles and asking State Printing to solicit bids from private vendors for producing the stickers. After taking these steps, the Director informed the Director of the Bureau of Administrative Services of her actions and the latter asked to be kept informed. At least one bid from a private vendor was lower than that from the Bureau of Motor Vehicles. The Director informed the bureau director of this fact and they decided to purchase the stickers from the private vendor. The stickers were supplied in a timely fashion and the Division later purchased its inventory of boat registration stickers from a private vendor as well. Another example of the Director determining the technical means of the Division's operations is in the area of designing and redesigning the various forms used by the Division. The Director directly or indirectly issues a total of 500,000 to 600,000 each year of its sixty different types of hunting and fishing licenses and three types of recreational vehicle registrations. In processing applications for, and issuing the various licenses and registrations and computerizing data relating to licensing and registration, the Division utilizes a large number of different forms. The Director periodically updates and changes the forms to improve agency operations. One provides technical knowledge or information to those involved in the decision-making process by translating information gained through study in an academic or scientific discipline, or from application of the scientific method, or from experience in working in an agency, into a form which can be understood by the decision-makers and used in the process of formulating and implementing policy. An example of the Director providing technical information to decision-makers is her participation in the Department's Any Deer Committee. As described in testimony, the Any Deer Committee consists of -21- ____________________________________________________________________ several employees of the Department including the Director. Its function is to monitor the lottery through which the Department issues permits to hunt antlerless deer and to suggest any changes in the system needed to address problems that have arisen. An antlerless deer permit application must be received by the Department prior to an established deadline in order for the applicant to be eligible to participate in the any-deer lottery. One year several persons claimed to have submitted their antlerless deer permit applications prior to the deadline at the Department's customer service counter in Augusta; however, there was no record of their having done so in the Department's records. Despite the individuals' vehement protests, they were deemed ineligible for the permit lottery that year. In order to avoid recurrence of the problem, the Director suggested at an Any Deer Committee meeting that persons tendering permit applications at the customer service counter be given receipts; therefore, if someone who failed to appear as having filed a timely application in the Department's records had in fact done so, she or he would have positive proof of timely filing. The suggestion was adopted and implemented. Another antlerless deer application problem concerned applications that were received prior to the deadline, but were incomplete. The Department returned such applications to the applicant with instructions that it be completed and resubmitted; however, no record was kept of the initial attempted filing and the resubmitted application might be received after the deadline. The Any Deer Committee discussed the problem and decided to rectify it by photocopying the incomplete applications prior to returning them and filing the photocopies in alphabetical order for easy retrieval. This decision has been implemented. To the extent described in the record, the Any Deer Committee does not make policy; but rather, reviews the technical operation of the antlerless deer permit lottery and alters such -22- ____________________________________________________________________ operations to solve problems as they arise. Membership and participation in the committee does not rise to the level of policy formulation. Furthermore, in both cases described above, the Director's input was based on her detailed knowledge of the Division's operational methods and procedures. The Director's actions in determining technical methods of operation and in providing technical information to the Any Deer Committee do not warrant a J-1 exclusion. The Director's involvement in the process through which it was decided that recreational vehicle registrations could be issued by municipal officials and private agents stands in sharp contrast with the Director's duties that have been discussed above. The facts pertaining to the decision are as follows. Prior to 1986 or 1987, all recreational vehicle registration applications were processed by, and all recreational vehicle registrations were issued directly by, the Division of Licensing and Registration at its headquarters in Augusta. At some point during 1986 or 1987, the Commissioner of the Department informed the Director that he had an idea that he wanted to discuss. The Commissioner wondered whether recreational vehicle registrations could be issued by municipal officials and private agents and asked what the Director thought about the idea and how it might work with the Division. The Director responded that she had not thought about the idea previously; however, she would do so and get back to the Commissioner. The Director considered the idea, discussed it with the Division staff, and analyzed the changes that would be needed and the likely costs associated with implementing the idea. After "quite a while," the Director approached the Commissioner and informed him that, although the employees in the Division opposed it, she felt that local registration could work and described her view of the steps required to make the idea into reality. The Director later discussed local registration with the Deputy Commissioner, the Director of the Bureau of Administrative Services, and the -23- ____________________________________________________________________ Commissioner and a consensus was reached to pursue the idea. The Director recommended statutory changes to permit the local issuance of recreational vehicle registrations and such changes were adopted by the Legislature. Subsequent to the legislative action, the Director developed a manual to guide municipal officials and private agents through the registration process and then helped to train such local personnel. The mission of the Division of Licensing and Registration is the efficient issuance and distribution of recreational licenses and vehicle registrations and the maintenance of accurate records concerning such activity. Central to the accomplishment of this mission is the determination of whether the licenses and registrations will be issued directly by Division personnel or indirectly through municipal officials and private agents. The decision of whether such issuance will occur centrally or locally is an important, if not the most important, objective of the Division and resolving the questions is a matter of policy. Unlike determining the technical means of performing a task, the issue here was whether the function will be performed exclusively by the Division employees or primarily by others. This decision had a significant impact on both the workload of Division employees and on the nature of the work being performed. Rather than directly processing thousands of applications each year, if local registration was implemented the Division would primarily provide oversight over those who would actually issue the registrations. During this process, the Director considered the alternatives, weighed the financial cost of implementing the idea, evaluated the impact of such implementation on the Division and its employees, and concluded that such implementation was possible. The Director not only provided technical information but also her opinion concerning the feasibility and workability of the proposal and participated in the discussion that resulted -24- ____________________________________________________________________ in the decision to present the idea to the legislature. Finally, the Director was involved in implementing the proposal by drafting the legislation required to authorize local issuance of the registrations, preparing the training manual for local officials and agents, and training the latter in recreational vehicle registration procedures. The Director's participation in the decision-making process that resulted in local issuance of recreational vehicle registrations warrants the exclusion of the Director of the Division of Licensing and Registration from the coverage of the Act pursuant to J-1. The Director's role in other matters also supports the exclusionary designation. The Director was involved in the process through which the fees charged for issuance of recreational vehicle dealer plates was standardized and in that which resulted in the local issuance of complimentary licenses-- both matters of policy. In each case, the Director identified a problem, initiated discussions about it with other officials in the Department, was involved in making the decision to rectify the situation, and either drafted the legislation necessary to effect the change or was directly involved in training others in carrying out the new policy. In addition, the Director submits proposed statutory changes each year and such changes are usually adopted by the legislature. These examples establish that the Director's involvement in policy formulation and effectuation in connection with local issuance of recreational vehicle registrations was not an isolated instance, but was typical of the Director's role in the Department. Fish and Wildlife Division Director (Wildlife) The second position in controversy is that of Fish and Wildlife Division Director (Wildlife). As was noted previously, the Wildlife Division and the Fisheries and Hatcheries Division make up the Department's Bureau of Resource Management. The Wildlife Division consists of two sections--the Resource -25- ____________________________________________________________________ Assessment Section and the Regional Management Section, each of which is under the direction of a section supervisor; both supervisors are classified as Biologist III's. The Assessment Section is comprised of species specialists who work in one of four on-going projects--the gamebird project, the cervid project (deer and moose), the bear and furbearers project, and the endangered species/non-game animal project. The section produces species-specific assessments which include discussions of a particular species' current population and population trend, history of use, habitat, trends in habitat (pressures affecting size and quality of habitat), and the past and current management efforts directed towards the species. The Regional Management Section is made up of seven administrative units, each of which addresses all wildlife issues within a specific geographical area of the State. Each administrative unit covers approximately 120 to 200 town(ships). The Wildlife Director classification is primarily supervisory in nature. The incumbent in the position estimates that he spends about 40% of his work time performing such typically supervisory functions as directing, advising, and training subordinate employees, overseeing the Wildlife Division's programs, and administering the Division consistent with established personnel rules, affirmative action plan, and collective bargaining agreements. In this context, the only thing which distinguishes this position (and the next one that will be discussed) from the classification discussed previously is the requirement that the incumbent be a trained and experienced scientist. This qualification is necessary for the incumbent in the classification to effectively supervise the work of subordinate employees, most of whom are trained scientists. None of these duties warrants a J-1 exclusion. The mission of the Wildlife Division is the assessment, management, and protection of the wildlife population state-wide. -26- ____________________________________________________________________ In general, this mission is accomplished through regulation of the harvesting of the various species of game animals and protection of essential habitat for game and non-game animals. Once an optimum population level is established for a species, the species assessment provides a scientific basis for determining a management plan for enlarging, maintaining, or reducing the number of animals of that species in the state. For game animals, the management plan includes regulations that set the dates for and the length of the open season for each species and controls through licensing the number and/or sex of animals that can be taken and the geographic area in which harvesting can occur. Game animal harvesting limits are promulgated, reviewed, and adopted pursuant to the Maine Administrative Procedure Act, 5 M.R.S.A. 8001, et seq. Species assessments and input from the Regional Management Section also provide the scientific basis for habitat protection activity. While habitat protection can occur through purchasing land, securing conservation easements, reaching agreements with property owners, or through rulemaking, the size of essential habitat and high cost of land usually leads the Wildlife Division to opt for protecting habitat through rules, which it proposes or which are proposed by the Land Use Regulation Commission or the Department of Environmental Protection, and which are adopted pursuant to the Maine A.P.A. Since rulemaking is the primary means through which the Wildlife Division accomplishes its mission and since the Wildlife Director is deeply involved in the rulemaking process, it is useful to describe that process, from the earliest inquiry in an area through final adoption of a rule concerning that area. All rulemaking in the Wildlife Division begins with a species assessment which is initiated by the Wildlife Director. The Director selects the biological problems to be investigated, establishes the methods to be used in the inquiry, and assigns personnel to perform the assessment. Once an assessment has been assigned, the Wildlife Director, acting through the assessment -27- ____________________________________________________________________ supervisor, assures that it is performed in a timely fashion. The assessments often include actions, in order of priority, which the species specialists recommend be taken to properly manage the species. Once an assessment is completed, the Wildlife Director reviews and edits it and determines whether the scientific data that it contains is sufficient to justify rulemaking. After including information from the regional management staff, the Wildlife Director recommends a management system for the species to the Director of the Bureau of Resource Management, who usually agrees with priorities recommended by the Wildlife Director and forwards the plan to the Deputy Commissioner and Commissioner for preliminary approval. If approved, the Wildlife Director prepares the proposed rule and supporting documents for rulemaking or provides technical and scientific information for incorporation into the rule which is drafted by the Wildlife Division Planner. During the actual rulemaking process, the Wildlife Director is the Department coordinator with the Department of Attorney General, which reviews the proposed rules for form and legality. The Director also serves as the agency contact person to answer public inquiries and receive written public comment concerning the proposed rule. The Wildlife Director attends the public hearing on the rule, which is conducted by the Commissioner, Deputy Commissioner or the Commissioner's designee, answers any scientific or technical questions which may be presented, and prepares a summary of all public comment received, including the substance of the comments and the identity and interest of those making comments. The Wildlife Director then presents the salient points of the proposed rule and the summary of public comments to the Commissioner and the Commissioner's Advisory Council. If, during its deliberation, the Council suggests changes that would have an impact on the biological goals for the species involved, -28- ____________________________________________________________________ the Wildlife Director so informs the Commissioner and the Advisory Council. After consultation with the Advisory Council, the Commissioner adopts the rule, amends the rule in response to public input and adopts the amended rule, or declines to adopt the rule. Once a rule is adopted, the Wildlife Director oversees implementation of the management decision in the field. Many of the Wildlife Director's functions in the rulemaking process are purely supervisory and administrative in nature. Among such duties are assigning, overseeing, and reviewing species assessments, coordinating such assessments with information from the regional management staff, coordinating rulemaking with the Attorney General's office and presenting the proposed rule to the Commissioner and the Advisory Council. Other aspects of the Wildlife Director's role in rulemaking can be characterized as merely providing technical input. Among these are reviewing the species assessments to determine the sufficiency of the scientific information contained, drafting the proposed rule or providing scientific support to the draftsman, addressing technical questions at the public hearing, and presenting the scientific justification for the rule to the Commissioner and the Advisory Council. As noted in connection with the first classification discussed, none of these duties and responsibilities supports a J-1 exclusion. Some of the Wildlife Director's responsibilities in the rulemaking process do indicate a substantial involvement in policy formulation and implementation. The Director determines which projects will be undertaken in the first place. While this discretion may be limited in the area of game animals because of the recurring need to adjust the management system annually in response to climactic changes, the success of the previous harvest and the size and condition of the game population, fewer limitations exist in connection with non-game animals. Second, the Director reviews the species management priorities -29- ____________________________________________________________________ recommended by both assessment and regional management staffs and, together with the Bureau Director, determines the management priorities that will be incorporated in the proposed regulation. Finally, the Director oversees the implementation of the rule once it is adopted. These functions, together with the Director's supervisory, administrative and technical input in the rulemaking process, do warrant an exclusion from the coverage of the Act pursuant to clause J-1. The Director's role in developing the Division's biennial budget and his participation in the site selection process for purchases by the Land for Maine's Future Board also support the above conclusion. In anticipation of preparing the biennial budget for the Wildlife Division, the Director solicits funding requirements from each management region and assessment project. The Director then reviews the total anticipated revenues from the Division's array of State and federal funding sources. Invariably, the Division's total funding needs are higher than the anticipated revenue and the Director must set spending priorities among the projects and management regions and some units receive less funding than they requested. Through this allocation process, the Director determines the extent to which each unit can function. The Land for Maine's Future Board purchases land for public use or to preserve unique parcels from development. Among the criteria utilized by the Board in its selection process is the property's value as wildlife habitat. As a regular part of the site selection process, the Wildlife Division provides recommendations on those parcels which it feels should be considered. Upon receipt of a request for habitat evaluations on the several parcels being considered by the Board, the Wildlife Director assigns the work of completing each evaluation to the regional management staff in the areas that contain the parcels at issue and to the species specialists. Once evaluations on all -30- ____________________________________________________________________ of the parcels have been completed, they are compiled by the Wildlife Director who rates in order of priority as habitat. The Director then reviews the statewide priority list with the Director of the Bureau of Resource Management and the final priority list is forwarded to the Board. In each of the three instances discussed above, the Wildlife Director is involved in selecting from among options in determining the means, methods, and extent of accomplishing the Division's mission and the Director also participates in implementing such decisions. By way of contrast, the Wildlife Director's role in the following activities does not include all of these elements; therefore, they do not constitute evidence relevant to an exclusionary designation pursuant to J-1. The Wildlife Division evaluates the potential impact of development activities proposed by other State departments or agencies on wildlife. Upon receipt of a request for review, the Wildlife Director assigns a regional wildlife biologist in the geographic area affected by the proposal, supported by species specialists, the task of evaluating the effect of the project and completing the wildlife impact statement. This statement not only details the consequences of the project in connection with local fauna but also recommends changes in the proposal which, if adopted, would minimize its impact on wildlife. The completed statement is sent to the Department's Environmental Coordinator-- an official in the Commissioner's office--for review and forwarding to the department or agency involved. If the Environmental Coordinator believes that the recommended project changes included in the statement are different from those issued in response to similar proposed projects in the past, the Wildlife Director reviews the supporting scientific data in the current statement, compares that information with the biological findings in the earlier cases, determines whether the difference in the recommended changes is scientifically justified, and -31- ____________________________________________________________________ decides which recommendations will be made. The Department policy in this context is to minimize, to the greatest feasible extent, the proposed project's impact on wildlife. The activities of the Wildlife Director merely involve applying his scientific training and experience in making sure that the Departmental policy is fairly and equitably applied. This activity is limited to policy implementation and does not involve policy formulation. The Wildlife Director is responsible for providing information to the Land Use Regulation Commission and the Department of Environmental Protection for their use in developing regulations to protect wildlife habitat. The Director's role in this process is to assure that relevant scientific information is collected and presented in a timely, professional, and consistent manner. The information involved is neutral scientific data and, while providing such information serves to further the Division's mission, it does not involve policy formulation. The Wildlife Director is the founder and chair of the Wetlands Protection Coalition, a group that includes representatives from the U.S. Fish and Wildlife Service, the Nature Conservancy, the Land for Maine's Future Board, and local and regional land trusts. The group meets two or three times per year, identifies parcels of land with the highest priority for protection ("anchor parcels"), and organizes a strategy for implementing protection. The result of the group's activity is to coordinate the efforts of all of its constituent members to avoid their working at cross purposes. The Coalition's efforts foster the mission of the Wildlife Division and, undoubtedly, the Wildlife Director gains information at group meetings that affects his input in formulating policy for the Wildlife Division; however, participation in the coalition, in and of itself, does not involve the development of policy within the -32- ____________________________________________________________________ meaning of J-1. Fish and Wildlife Division Director (Fisheries and Hatcheries) The next classification which we will consider is that of Fish and Wildlife Division Director (Fisheries and Hatcheries). The Fisheries and Hatcheries Division consists of two sections-- the Fisheries Research and Management Section and the Fish Hatchery Section. The former section is supervised by the Fishery Management Supervisor and it is composed of a research staff, which is much smaller than the Wildlife Division's Assessment Section, and seven regional offices. The Fish Hatchery Section is comprised of a fish pathology office and nine hatcheries located around the State, including two fish rearing stations. The latter section is supervised by the Hatcheries Superintendent. Like their counterparts in the Wildlife Division, the Fishery Management Supervisor and the Hatcheries Superintendent are classified as Biologist III's. The fisheries research staff perform specific research projects concerning the various species managed by the Division and the regional management staffs each address all fisheries issues which arise in their assigned area of the State. The Hatcheries Section acquires and hatches eggs and rears fish for stocking the various bodies of water in the geographic area serviced by each hatchery. The primary work of the Fisheries Director, like that of the counterpart position in the Wildlife Division, is supervisory in character. The Administrative Report of Work Content prepared by the incumbent Fisheries Director contains an estimate of percentages of work time spent performing various types of functions which is almost identical to that prepared by the Wildlife Director. Performance of such supervisory duties does not warrant a J-1 exclusion. The mission of the Fisheries Division is to preserve, protect, enhance, and promote the use of the fishery resources -33- ____________________________________________________________________ found in the inland waters of the state. This mission is carried out through the research-based management of various species of fish--primarily salmonid fishes. The major tools for managing fish populations are the regulation of species' bag limits and the length of fish which may be taken, including setting special restrictions for fishing in particular bodies of water, and maintaining fish populations through stocking different bodies of water. The Division encourages the expanded use of the fishery resource through its decision to only stock bodies of water to which the public has access. Pursuant to a federal mandate, the Division also enhances use of the resource by acquiring land and developing motorboat access areas. The general goals and objectives of the Fisheries Division are determined by a five-year Strategic Fisheries Plan developed by public working groups with technical input by the Division's staff biologists. The three public working groups are: one dealing with cold-water species, one for warm-water species, and one for bait fish. The members of each group are appointed by the Commissioner or the Deputy Commissioner from a pool developed by the Fisheries Director, consisting of persons who are interested in each type of species. With over twenty-five years' experience dealing with Maine fisheries and through attendance at numerous public meetings and hearings, the Fisheries Director is personally acquainted with the representatives of all organized groups and with most individuals who have an interest in the Division's activities. Other potential appointees are recommended by the Division staff and are reviewed by the Fisheries Director, prior to being added to the poo1. In developing the list of prospective nominees, the Fisheries Director attempts to minimize regional and philosophical biases by including persons from various parts of the State and individuals who have been critics of the Department in the past as well as those who generally support the Department's efforts. -34- ____________________________________________________________________ The specific topics which each public working group considers are determined to a considerable extent by the species plan provided by the Fisheries Division staff. The Fisheries Director, in consultation with the Fisheries Planner (an official in the Commissioner's office) and the Fisheries Management Supervisor, determines which specific species will be studied. Once this decision is made, the Fisheries Director, who is a trained and experienced fisheries biologist, assigns the task of developing the various species plans to particular staff biologists. Each species plan is based on empirical research and includes a review of the history of the species in the state, its current estimated population, population trends, its available habitat, the level of use of the species, the potential use opportunity, and recommendations of the types of management activities needed and alternative means of successfully managing the species. Once completed, the species studies are circulated among the rest of the Division staff for peer review and they are examined by the Fisheries Director, the Director of the Bureau of Resource Management, and the Commissioner. Once the draft staff reports are finalized, the working groups convene. At the outset, each public working group meets with and hears from the authors of the species plans for the species they will be considering. The groups then discuss the various species with the species specialists, list additional problems, goals and objectives for each species, and develop alternate strategies for meeting such goals. Through further discussion, the working groups sharpen their focus and develop a single goal for each species and recommend alternatives for achieving that goal during the five-year period covered by the plan. Once the Strategic Fisheries Plan is finalized by the public working groups, the Fisheries Director is responsible for selecting from among the alternate strategies presented and for developing and implementing the operational plan for meeting the strategic goals during the five-year period. -35- ____________________________________________________________________ Perhaps the single most important fisheries management tool available is regulation of fish harvesting through bag limits and/or limits on the length of fish which may be taken. In order to minimize confusion among anglers, the Fisheries Division reviews and revises its fishing regulations once every other year and the resulting regulations are incorporated into a "law book" which remains in effect for two years. Proposals for regulatory changes which arise between scheduled rulemakings are collected for consideration during the next scheduled rulemaking. The impetus for changes in the fishing regulations arises from anecdotal information from anglers concerning population changes and from fish censuses conducted by the Division staff. All proposed regulatory changes are submitted to the Fisheries Division's regulations committee, a group that consists of the Fisheries Director, the Fisheries Management Supervisor, one biologist from each region, and one research biologist. The committee reviews available biological information, examines fishing pressure, determines whether sufficient scientific evidence exists to warrant a change and weighs whether such evidence is sufficiently persuasive to convince the general public and the Commissioner of the necessity for a regulation change. The committee is usually able to reach a consensus on the biological analysis of the problem and on scientifically sound alternative solutions. Often, the various management alternatives available are of equal biological value. In such cases, the Fisheries Director either determines the means through which the management objective will be achieved or suggests that both alternatives be submitted in the rulemaking, with the ultimate adoption of that alternative which garners greater public support. Regulatory changes recommended by the regulations committee that affect only particular bodies of water--usually a single named pond or stream--are then reviewed by the Fisheries Director -36- ____________________________________________________________________ who effectively determines the precise change that will be sought through rulemaking. If the regulations committee recommends a change with state-wide implications, the Fisheries Director discusses the proposal with the Director of the Bureau of Resource Management, the Deputy Commissioner, and the Commissioner in order to determine whether to seek a change and what change to seek through rulemaking. During such discussions, the Fisheries Director presents relevant scientific information concerning the species affected by the change under consideration and his recommendation concerning the proposal. Like his Wildlife Division counterpart, the Fisheries Director is the agency contact person for rulemaking proceedings that affect the Fisheries Division. In that capacity, the Director attends all public hearings, collects all written public comments received concerning the proposal, and summarizes all such public input before the Commissioner and the Advisory Council. During this final step of rulemaking, the Fisheries Director always presents a recommendation concerning the rule being considered. Such recommendation is followed approximately 95 percent of the time. The Fisheries Director is responsible for developing the biennial budget for the Fisheries Division. The Director and the Division staff reach consensus on the amount required to fund each job planned and, after estimating the total amount of revenue that will be available from all sources, the Fisheries Director decides which jobs will be funded and at what level. In addition, the Director makes all procurement and capital expenditure decisions for the Division. Other than capital projects, the hatcheries section budget contains very little discretionary spending and is stable from year to year. The section budget is prepared by the Hatcheries Superintendent and is reviewed and approved by the Fisheries Director. The Fisheries Director's role in selecting the topics for -37- ____________________________________________________________________ study and review by the public working groups, the degree of input and control the Director has in the rulemaking process, the control exercised through fashioning the Division budget, and the operational control exercised through authorizing specific jobs all establish that the Fisheries Director has sufficient input in the formulation and effectuation of policy within the Department to be excluded from the coverage of the Act pursuant to clause J-1. In performing each of these functions, the Director selects from among alternatives in determining what and how much the division will do and how it will be done. While their respective duties are quite similar, the most significant difference between the Wildlife Director and the Fisheries Director is the extent to which the latter works independently from the Director of the Bureau of Resource Management. While the Wildlife Director's substantial input at critical points of the process through which wildlife policy is developed and implemented is sufficient to warrant an exclusionary designation pursuant to J-1, the Wildlife Director's testimony contains several references to his close working relationship with the Bureau Director. The Bureau Director's involvement in wildlife policy is quite natural, considering that the Bureau Director's education, training, and experience are in wildlife and not in fisheries. The working relationship between the Wildlife Director and the Bureau Director made it difficult to assess the degree to which the Wildlife Director exercises judgment in the policy-making process. The Fisheries Director exercises independent professional judgment, appropriate to his position within the departmental chain of command, in making policy recommendations and decisions in implementing policy; therefore, the evidence warranting exclusion of the Fisheries Director was more compelling than that in connection with the Wildlife Director classification. The Fisheries Director's participation in formulating and -38- ____________________________________________________________________ implementing several policies, which go beyond the periodic fisheries management policies described above, further supports the exclusionary designation. Among such broader policies are those concerning: regulation of private stocking of public waters, the public use of water supply ponds, the reporting and investigating of fish kills, the eradication of exotic species, and scuba equipment use by Departmental employees. In each case, a problem was brought to the attention of the Fisheries Director. The Director then assigned the task of outlining the nature and scope of the problem and of presenting alternative ways of rectifying it to staff biologists and, if law enforcement was implicated, to Warden Service staff as well. Once completed, the staff report was submitted to a peer review; subsequent to such review, the Fisheries Director, individually or through consultation and consensus with other Department officials, recommended that an appropriate policy be sought through rulemaking. Once the policy was adopted, the Fisheries Director was involved in its implementation in most cases. Finally, the Fisheries Division provides technical information which is used by other State and federal departments or agencies in their regulatory processes. Among the agencies receiving such input are the Land Use Regulation Commission, the Department of Environmental Protection, and the Federal Energy Regulatory Commission, in connection with the licensing or relicensing of hydropower projects. In each of these instances, the record established that the Fisheries Division provides neutral biological information and does not provide recommendations on social and/or political issues. The receiving agency considers the technical information provided by the Fisheries Division together with other technical information and social and political factors in fashioning their policy decisions. The mere providing of technical or scientific information for use by decision-makers in policy formulation does not constitute evidence in support of a J-1 exclusion. -39- ____________________________________________________________________ Supervisor, Land Acquisition and Development The last classification at issue is that of Supervisor, Land Acquisition and Development. The Supervisor heads the Engineering and Realty Division of the Department's Bureau of Administrative Services. The Supervisor is the direct supervisor for the Division's five employees who are in the following classifications: Right-of-Way Appraiser, Engineering Technician III, Carpenter (2 individuals) and a Clerk IV who is the Division secretary. The incumbent Supervisor has a degree in civil engineering and had been in the position for approximately 5 years at the time of the hearing. The mission of the Division is to acquire, develop, and maintain land and facilities for wildlife and fisheries management purposes. The Supervisor performs professional land acquisition and development work which includes negotiating the acquisition of land and designing and supervising or overseeing all construction, maintenance and repair activities at all facilities or property owned or controlled by the Department. Such facilities include regional headquarters, fish hatcheries, dams, fishways, boat access areas, and access roads and bridges. The Administrative Report of Work Content prepared by the incumbent Supervisor indicates that almost all of the Supervisor's work time is spent performing the tasks assigned to the Division, including supervising personnel; preparing reports; designing, estimating the cost of, and supervising construction and maintenance projects; inspecting properties for potential acquisition; performing title and probate record searches; negotiating for the acquisition of land through purchase, lease, or conservation easement; and preparing conveyancing documents. The State primarily bases its exclusionary designation request for this position on three factual situations: the Supervisor's involvement in the formulation and implementation of the Department's land acquisitions policy, his chairing a -40- ____________________________________________________________________ committee to review the Department's capital equipment policy, and the Supervisor's role in preparing the budget for the Engineering and Realty Division. Shortly after a $5 million bond issue to fund the acquisition of land for wildlife management purposes was adopted, a public working group was established to develop the broad goals and objectives for the acquisition effort. Approximately 50 organizations were invited to participate as were a number of Department employees, including the Supervisor. The working group met every other week for two months and attendance ranged from 35-40 persons at the initial meeting to approximately 15 at the last meeting. The Supervisor participated in the public working group sessions. Recognizing the greater threat to wildlife habitat due to higher development pressures in the southern coastal region of the state, the working group recommended that 75-80% of the bond money should be spent in that area and the remaining 20-25% should be spent in the inland and northern areas of the state. The group recommended general allocations among the types of land available--wetlands, uplands, boat access and, in the south coastal region, islands and ledges--for the two regional areas. Finally, the working group included in its report a list of habitat factors which should be considered in making acquisition decisions. After the public working group issued its recommendations, a committee was established within the Department, consisting of the Deputy Commissioner, the Director of the Bureau of Resource Management, and the Supervisor, to develop a more detailed acquisition policy. The policy adopted by the committee included a discussion of different acquisition methods (purchasing, leasing, or using conservation easements) and outlined criteria for weighing the value of land for acquisition. The committee determined that the primary consideration in all acquisition decisions would be each parcel's value as habitat. Deemed -41- ____________________________________________________________________ especially important was habitat that had been identified in recovery plans for rare, endangered, or threatened species; that which includes nesting, rearing, or wintering areas for animals; or that which supports a wide variety of species (e.g., inland wetlands are important habitat for waterfowl, wading birds, aquatic mammals, fish, reptiles, and amphibians). Secondary considerations in acquisition evaluations were: whether the parcel is accessible to the public for hunting, fishing and trapping; the price--the general guideline was that $325 per acre should be paid for uplands and $225 per acre for wetlands; development costs; and the potential financial return which could be realized through tree harvesting consistent with the wildlife management plan for the parcel. The committee then reviewed individual parcels and established a priority list for acquisitions. The Department invited the public to suggest parcels which should be acquired. Private citizens, sportsmen's groups, Department biologists, and landowners all suggested land which they wanted the Department to purchase. Either the Supervisor or a regional wildlife biologist contacted the owners of the parcels suggested to determine whether they might be available for acquisition. Wildlife and fisheries biologists then examined and reported on the habitat value of each available parcel. The committee, with considerable input from the staff biologists, determined the priority list for acquisitions. Of the parcels originally recommended for acquisition, approximately 10%--totaling 23,000 acres--were actually acquired. On one occasion, the Deputy Commissioner designated the Supervisor to chair an ad hoc committee whose purpose was to establish a capital equipment policy for the Department. The committee recommended a policy on the length of time the Department should keep its motor vehicles and how it should -42- ____________________________________________________________________ dispose of such vehicles at the end of their useful lives. The policy remained in effect at the time of the evidentiary hearing herein. Each year, the Supervisor personally visits each facility owned or controlled by the Department, evaluates whether the facility will need repair or maintenance work during the next budget period, and, if so, estimates the cost of performing the work required. The Supervisor then includes the total of all of the cost estimates in the preliminary biennial budget for the Engineering and Realty Division. Once the level of anticipated revenues for the biennium becomes known, the Supervisor works with the regional headquarters staffs and with the Hatcheries Superintendent to set priorities among the projects. As was noted earlier in this opinion, the Wildlife and Fisheries Directors, after consultation with the Director of the Bureau of Resource Management, make the effective decisions as to which expenditures will be incurred. In addition to the major activities discussed above, the State avers that the following support an exclusionary designation for the Supervisor classification: if dams become available, the Supervisor recommends to the Commissioner whether they should be acquired; the Supervisor recommended that garbage cans and outhouses not be provided at boat launch areas built by the Department; and, on two occasions, the Supervisor recommended that the Department policy prohibiting fishing within 150 feet of a fishway be waived. Like all acquisition decisions made by the Department, those concerning dams turn first and foremost on the biological value of the property at issue. The Supervisor's primary input is to provide cost information concerning the development, repair and maintenance of the property in question. The Supervisor is not qualified to make biological assessments; therefore, his recommendations are, at most, of only secondary importance in the decision-making process. -43- ____________________________________________________________________ Second, the providing of trash cans and outhouses at boat launch areas is, at most, tangential to the Department's mission of managing resources and promoting public access to the inland waters. The decision not to do something which, if done, would be extremely remote from a department or agency's mission, does not rise to the level of constituting policy formulation. Neither does recommending that the fishway fishing prohibition be waived in two specific, limited circumstances. This is especially true when the critical input in the decision-making process was the regional biologists' assessment that the waiver would not be harmful to the species affected in each case. Review of the Supervisor's duties clearly indicates that the position has been much less involved in policy formulation and effectuation than the other three discussed above. Each of the previous positions is regularly involved in making and implementing policy while the Supervisor participated in developing and effecting a single, albeit important, policy during his five-year tenure--the land acquisition policy. The hearing examiner in the D.O.T. decision held that an employee temporarily assigned to policy development, D.O.T. at 42, or a single instance of substantial participation in policy formulation and implementation did not warrant a J-1 exclusion. D.O.T. at 41. While the Supervisor participated in development of the vehicle retention policy, there was no evidence that he was in any way involved with the policy's implementation. Involvement in both policy formulation and implementation is required for a J-1 exclusion. Finally, the evidence in the record established that the Wildlife and Fisheries Directors effectively made the decisions in adjusting their respective biennial division budget proposals in the face of anticipated revenues which were less than required to fully fund the original budgets. The Supervisor's role in the budget process is to draft a "dream budget" which would fund all of the Department's maintenance and repair needs. Once the level of anticipated -44- ____________________________________________________________________ revenues is known, the Supervisor provides technical information such as project cost estimates and cost/benefit analyses and the budget is adjusted in consultation with Bureau of Resource Management staff. The Supervisor's role in the budget process involves much less discretion than do those of the Wildlife and Fisheries Directors. Were this the end of our inquiry, the executive director would have concluded that the Supervisor's participation in policy formulation and implementation was not sufficiently substantial to warrant exclusion of the position from the coverage of the Act pursuant to clause J-1. The hearing examiner in the D.O.T. decision mentioned federal precedent which recognizes that employees, who may through exercise of independent professional judgment commit substantial employer resources to further the best interest of the employer, have an inherent involvement in policy formulation and effectuation. The degree of discretion exercised must be considerable and must not fall within "relatively unimportant areas." Maccabees Mut. Life Ins. Co. v. NLRB, 757 F.2d 767, 769 (6th Cir. 1985). Among the factual considerations examined in this context is the authority to select vendors, award bids, negotiate the prices and terms and conditions of purchases, and issue purchase orders for substantial sums of money. D.O.T. decision at 5. The Supervisor exercises considerable professional discretion in committing substantial Department resources. To a significant extent, the Supervisor effectively determines the means, methods, and extent to which the Department's land acquisition policy can be carried out through his negotiating acquisitions with landowners. The Supervisor enters the negotiations aware of the particular parcel's biological value to the Department's management effort. The means by which the parcel will be acquired, whether by conservation easement, lease or purchase, is left to the Supervisor's sound discretion in -45- ____________________________________________________________________ light of developments during negotiations. If the State must pay a fee to acquire an easement or a lease, the Supervisor negotiates the amount of such fee with the landowner. If the State is purchasing the land in question, the Supervisor bargains the sales price with the seller. In all acquisitions, the Supervisor negotiates all of the terms and conditions of the transaction, including any rights which the grantor wishes to retain in the premises. By negotiating no-fee or lower fee easements and leases and bargaining for the lowest possible sales price for land purchases, the Supervisor is very much involved in determining the extent of the Department's land acquisition program. The Supervisor exercises more limited discretion in committing Departmental resources through his involvement in facilities maintenance. The Supervisor reviews maintenance projects; determines whether they can be performed by the Department's crew; if not, drafts requests for proposals; puts the work out to bid; and prepares the necessary contracts for review by the Bureau of Public Improvements. The Supervisor's authority to effectively commit substantial Department resources through exercise of discretion in land acquisitions and facilities maintenance warrants an exclusion from the coverage of the Act pursuant to clause J-1. -46- ____________________________________________________________________ ORDER On the basis of the foregoing stipulations, findings of fact and discussion and pursuant to the provisions of 26 M.R.S.A. 979-E(3) (1988), it is hereby ORDERED: 1. That the Motion to Dismiss filed by the State of Maine in Case No. 91-UC-11 is granted. The Petition for Unit Clarification filed by the Maine State Employees Association, Local 1989, SEIU, on November 9, 1990, in Case No. 91-UC-11 is dismissed. 2. That the Motion to Dismiss filed by the Maine State Employees Association in Case No. 83-UC-43 is denied. 3. That the following classifications fall within the exclusion contained in the first clause of 26 M.R.S.A. 979-A(6)(J) (1988) and are, therefore, excluded from the coverage of the Act and from inclusion in any bargaining unit: Director, Division of Licensing and Registration Fish and Wildlife Division Director (Wildlife) Fish and Wildlife Division Director (Fisheries and Hatcheries) Supervisor, Land Acquisition and Development Dated at Augusta, Maine, this 4th day of May, 1993. MAINE LABOR RELATIONS BOARD /s/_____________________________ Marc P. Ayotte Executive Director The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 979-G(2) (Supp. 1992), to appeal this Order to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of the issuance of this report. See Rules 1.12 and 7.03 of the Board's Rules and Procedures for full requirements. -47- ____________________________________________________________________